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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v NICHOLAS COLE SINNETT, Defendant-Appellant.

UNPUBLISHED November 23, 2010

No. 293738 Livingston Circuit Court LC No. 08-017122-FC

Before: CAVANAGH, P.J., and HOEKSTRA and GLEICHER, JJ. PER CURIAM. Defendant appeals by leave granted the trial court's denial of his motion to withdraw his guilty plea for unarmed robbery, MCL 750.530. We reverse and remand to the trial court. Defendant's conviction arises from his unauthorized taking of a diamond ring that was owned by someone who had met with him under the pretense that defendant was interested in purchasing it. Before defendant absconded with the ring, it was alleged that he acted nervously and that he placed his hand inside a breast pocket of his jacket leading the victim to believe that defendant may have been armed. Although defendant was initially charged with armed robbery, he was permitted to plead guilty to unarmed robbery. Between the time of the plea proceeding and his sentencing, defendant wrote several letters to the trial court. In those letters defendant challenged the factual basis of his plea, indicating that he never threatened the victim or had his hand in his jacket pocket before the victim voluntarily gave him the ring to inspect. Defendant admitted, however, to committing a larceny. Defendant repeatedly asserted his innocence with regard to the unarmed robbery guilty plea and, in at least one letter, requested that he be allowed to withdraw his plea. At the sentencing hearing and before sentencing, defendant again requested to withdraw his guilty plea in this matter. The court refused to consider the motion to withdraw the plea, stating that the request "should be done more formally and it can be done after sentencing." The sentencing hearing proceeded and concluded with defendant being sentenced to 20 to 50 years, an upward departure from the guidelines range of 50 to 200 months. After sentencing, defendant filed a motion to withdraw his guilty plea, or for an evidentiary hearing, primarily arguing that he was actually innocent of unarmed robbery. Defendant admitted that he was guilty of larceny only. The court denied the motion. Defendant -1-

then filed this delayed application for leave to appeal, which was granted by order entered on October 6, 2009. Defendant argues that he should have been allowed to withdraw his guilty plea because, prior to sentencing, he repeatedly challenged the factual basis for the plea, asserted his innocence, and moved to withdraw his plea. We agree. A trial court's denial of a defendant's motion to withdraw a guilty plea is reviewed for an abuse of discretion. People v Harris, 224 Mich App 130, 131; 568 NW2d 149 (1997). There is no absolute right to withdraw an accepted guilty plea. People v Gomer, 206 Mich App 55, 56; 520 NW2d 360 (1994). A court may permit a guilty plea to be withdrawn in the interest of justice before sentencing unless withdrawal of the plea would substantially prejudice the ability to prosecute the defendant because of the prosecutor's reliance on the plea. MCR 6.310(B)(1). In the absence of a procedural error in receiving the plea, a defendant must "establish a fair and just reason for withdrawal of the plea." Harris, 224 Mich App at 131. When a defendant asserts his innocence before sentencing, a court should be liberal in considering a request to withdraw a guilty plea. People v Bencheck, 360 Mich 430, 432; 104 NW2d 191 (1960). However, the request need not be granted where it is obviously frivolous. People v Hundley, 181 Mich App 137, 138; 449 NW2d 121 (1989). And a defendant's true motive in requesting a withdrawal must be based on a concern other than sentencing. People v Camargo, 163 Mich App 581, 584; 415 NW2d 211 (1987). Defendant argues that he should have been permitted to withdraw his plea before sentencing under MCR 6.310(B) because he repeatedly asserted his innocence and disavowed the factual basis for the plea to an assaultive crime in several letters to the court prior to sentencing, at his presentence investigation interview, as well as at the sentencing hearing prior to sentencing. We agree. A conviction for unarmed robbery requires proof that, in the course of committing a larceny, the defendant used force or violence against a person or assaulted or put a person in fear, although not armed with a dangerous weapon. See MCL 750.530; People v Johnson, 206 Mich App 122, 125-126; 520 NW2d 672 (1994). In this case, it was alleged that defendant had his right hand over the upper left breast pocket of his coat when he told the victim to give him the ring thus placing the victim in fear before he fled with the ring. At the plea hearing, the court attempted to establish the factual basis for the plea. The following exchange between the court, attorneys, and defendant occurred: The Court: . . . He intended when he reached his hand in his pocket that that to scare her. Isn't that an essential element? I think it is. This is not the time to pussyfoot around stuff like that. Mr. Novelli [defense counsel]: No, it's not pussyfooting around, it's just that the plea

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